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Targeting free speech

As journalists face the courts, the FCC clamps down, and secrecy grows, is the First Amendment under attack?

It's no accident that Court TV and the Sundance Channel picked tonight to air the first two films in their ''First Amendment Project," which examines challenges to free speech. Court TV CEO Henry Schleiff says Dec. 7 was selected to remind Americans of the entry into World War II and the freedoms at stake. It is also meant to convey, he says, a ''very heavy-handed message" in support of the First Amendment.

Those rights will be tested in federal courtrooms this week as several journalists -- including Time magazine's Matthew Cooper, Judith Miller of The New York Times, and Providence television reporter Jim Taricani -- face the prospect of prison time for declining to reveal confidential sources. ''The only way people have to know what's really going on is to hear from the people in government who aren't authorized to talk," says Miller, discussing the so-called reporter's privilege.

Miller says that the number of reporters now being pressured to identify sources or face the wrath of the law is indicative of a larger problem. ''I point to a number of factors," she says. ''The growing number of leak investigations. The growing amount of information that is secret . . . [and] the classification of a lot of information that I don't think should be classified. I believe a balance needs to be struck, and right now the pendulum has swung too far to the classification and secrecy side of the ledger."

Citing everything from reporters facing judges to the government's increased penchant for classifying documents to the Federal Communications Commission's iron-fisted enforcement of indecency rules, advocates of the public's right to know say the First Amendment and the free flow of information are under serious strain, if not outright assault. And a number of them point the finger at the chilling impact of the 9/11 attacks and a secrecy-loving Bush administration.

There is a ''huge concentration of power in an . . . administration that has a big belief in executive power and executive secrecy," says Joan E. Bertin, the executive director of the National Coalition Against Censorship. ''There's always been censorship. It's different and worse now."

Gene Policinski, executive director of the Freedom Forum's First Amendment Center, says ''the First Amendment is being tested more than ever before in our society. . . . I think the war on terror has heightened [public sentiment] that we are too free a society."

Every year, the center releases a ''State of the First Amendment" survey. The 2004 poll found that only 30 percent of the public said the First Amendment ''goes too far in the rights it guarantees," compared to the 49 percent who concurred with that sentiment in 2002. At the same time, 42 percent said the US press has too much freedom, and 41 percent said newspapers should not be allowed to freely criticize military strategy and performance.

Yet 70 percent of the 1,000 respondents said journalists ought to be able to keep a news source confidential at a time when reporters are regularly being hauled before judges on that very issue.

Miller and Cooper will be in court tomorrow, trying to stave off prison terms after refusing to talk about confidential sources in connection with the highly publicized investigation into who leaked the identity of CIA operative Valerie Plame. WJAR-TV's Taricani is scheduled to be sentenced Thursday after declining to reveal who provided him with a secret FBI tape during a municipal corruption investigation, although that case has been complicated by the public emergence of his source last week. Five other reporters have been found in contempt of court for refusing to disclose sources used in reporting on Wen Ho Lee, the former nuclear scientist who was once a prime suspect in an espionage case. The next hearing in that case is scheduled for May.

And the list could soon grow longer given last week's San Francisco Chronicle report that the US attorney in that city has asked for an investigation into media leaks of grand jury testimony in the BALCO (Bay Area Laboratory Cooperative) doping case.

Senator Christopher Dodd of Connecticut recently filed federal legislation to provide reporters with complete protection against being forced to disclose sources, calling the measure ''fundamentally about good government and the free and unfettered flow of information to the public."

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, decries the ''atmosphere of increased secrecy" that has spawned many of these journalism/law enforcement showdowns by making publicly available information harder to come by, thus forcing more reporters to rely on confidential information. ''I don't know if it's a conservative trait," she says. ''I definitely think it is a trait of this particular conservative administration."

In September, the Reporters Committee released a 95-page report called ''Homefront Confidential: How the War on Terrorism Affects Access to Information and the Public's Right to Know." Among the factors the report concluded have impeded the free flow of information were a directive by Attorney General John Ashcroft that allowed federal agencies to reinterpret the Freedom of Information Act to restrict the release of data, the investigation into the Plame leak by special prosecutor Patrick Fitzgerald, the firing of a US Park Police chief who discussed budget difficulties with a Washington Post reporter, and the removal of information, ostensibly for national security reasons, from the websites of the Nuclear Regulatory Commission, the National Aeronautics and Space Administration, and the Federal Communications Commission.

''We're concerned about the corruption of the collective knowledge base," says Bertin, of the National Coalition Against Censorship. ''We see it as a First Amendment issue."

In August, OpenTheGovernment.org -- a coalition of groups ranging from Common Cause to the American Library Association -- released a ''Secrecy Report Card" revealing that the federal government in fiscal year 2003 had spent $6.5 billion to create 14 million new classified documents, which the coalition characterized as ''the biggest jump in secrecy for at least a decade." The survey also reported that a growing public demand for federal documents requested through the Freedom of Information Act was creating an increased backlog at agencies without sufficient resources to handle the traffic.

According to OpenTheGovernment.org coordinator Rick Blum, the idea for the organization was hatched several years ago after growing concern about ''a great closure of government records . . . since 9/11 especially. . . . What we're trying to do is raise this issue [of government secrecy], he says. ''It's been a secondary issue for too long."

One free-speech issue that has been front and center in the public consciousness, at least since Janet Jackson's ''wardrobe malfunction" during the Super Bowl halftime show, has been the FCC's crackdown on indecency on the airwaves. In a dramatic case of preemptive censorship, some ABC affiliates -- including WCVB-TV in Boston -- chose not to air ''Saving Private Ryan" on Veterans Day for fear that its graphic language and violence might bring fines or even license removals from the FCC.

Even though the movie had been broadcast in 2001 and 2002 and the FCC had dismissed an earlier complaint against it, evidence suggests that from a regulatory standpoint, things have changed. Earlier this year, the commission overruled a previous decision and decided that rock star Bono's use of an obscenity during a ''Golden Globes" broadcast was indecent and profane. And there had also been a $550,000 fine against CBS-owned stations for the Super Bowl incident and more than $1 million in penalties levied against Fox television stations for airing the racy reality show ''Married by America."

While FCC commissioners led by chairman Michael Powell have indicated that they are responding to a public outcry against increasingly offensive television programming, some critics charge them with an attack against free expression.

''I think that Powell has done a horrible disservice to the First Amendment," says Jeffrey Chester, executive director of the Center for Digital Democracy, which focuses on media diversity and FCC issues. ''Basically, there's this kind of mindless group-think . . . that has had an incredibly chilling effect on all television programming in the United States. . . . It shows you the problem when you have political operatives in government making decisions about content."

The hot breath of tougher government enforcement has also been felt in the radio industry, where certain on-air language has been deemed off limits, more stations have begun using delay mechanisms to edit caller remarks, and executives have huddled in conference calls with corporate legal staffs to create new policies about what can be aired. When shock jock Howard Stern recently announced plans to take his program to satellite radio in 2006, he said he was ''tired of the censorship."

''Radio stations, meaning management, have institutionalized this type of restrictive behavior," says Talkers magazine publisher Michael Harrison. ''And the segment of the American population that wants to control morality feels emboldened by the results of the election." 

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